California Attorney General Opinion No. 79-408

1 79-408 TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California GEORGE DEUKMEJIAN Attorney General _________________________ OPINION of GEORGE DEUKMEJIAN Attorney General Paul H. Dobson Deputy Attorney General : : : : : : : : : : : No. 79-408 June 29, 1979 SUBJECT: DRUG SURVEILLANCE PROGRAMS—School districts may lawfully require a student or the student’s parent to give written consent for the student to submit to unannounced urine tests for the presence of drugs if such a test program meets the three requirements of the Parrish test. The Honorable Stan Statham, Assemblyman, First District, has requested an opinion on questions which we have rephrased as follows: 1. May a school district lawfully require as a condition to student participation in non-credit after-school athletic programs, that a student, or if the student is a minor, the student’s parents or guardian, give written consent for the student to submit to unannounced urine tests for the presence of drugs? 2. Is the program invalid because it discriminates against athletes? 3. Could such a program be extended to other after-school activities for which credit is offered and in which the risk of physical injury is minimal, i.e., band? 2 79-408 CONCLUSIONS 1. A school district may lawfully require as a condition to student participation in non-credit after-school athletic programs, that a student, and if the student is a minor, that the student’s parents or guardian, give written consent for the student to submit to unannounced urine tests for the presence of drugs, if the district has reasonably determined (1) that drug abuse by student athletes is occurring and does constitute a serious hazard to their safety while they are participating in athletic programs; (2) that the method of testing employed is designed to detect the types of drugs which constitute the hazard; and (3) that no effective, but less onerous method of preventing the drug abuse is available. 2. Such a program does not deny student athletes equal protection of the laws. 3. Without more specific facts regarding the nature of the other activities, the kind of drug testing programs applied to them and the reasons therefore, we cannot determine the validity of such programs. ANALYSIS We have been advised that a high school district has established a drug surveillance program which requires a student who desires to participate in non-credit after-school athletic programs to sign a written consent, or if the student is a minor, to have his or her parents or guardians sign a written consent, to agree to have the student submit to unannounced urine testing for the presence of drugs. The purpose of the program is to prevent drug use by the student athletes which may result in physical harm to themselves or their teammates. It is asked whether the program is lawful. We conclude that such a program may be lawfully administered subject to the following conditions. First, the district must have previously determined on reliable information that drug abuse by student athletes is occurring and does constitute a serious hazard to their safety while they are participating in the athletic programs. Second, the method of testing employed must relate to the types of drugs which constitute the hazard. Third, there must be no less onerous alternative method of effectively preventing the drug abuse available. School districts have a duty to protect students from foreseeable risks of harm while they are in school or participating in school related activities. (See Hoyem v. Manhattan Beach City School District (1978) 22 Cal. 3d 508, 513; Dailey v. Los Angeles Unified School District (1970) 2 Cal. 3d 741, 748.) Consequently, school employees have been held to a standard of ordinary care in supervising student activity in order to prevent injuries caused by the intentional or reckless conduct of the student victim or a fellow student. (Dailey v. Los Angeles Unified School District, supra; see also Pirkle v. Oakdale Union Etc. School District (1953) 40 Cal. 2d 207; Bellman v. San Francisco High School District 3 79-408 (1938) 11 Cal. 2d 576; Kerby v. Elk Grove Union High School District (1934) 1 Cal. App. 2d 246, 250.) The Education Code requires school district boards to give diligent care to the health and physical development of students. . . .” (§ 49400), to make rules for health examinations of students (§ 49450), and to “exclude children of filthy or vicious habits. . . .” (§ 48211); it also establishes as cause for suspension or expulsion the use, sale, or possession of illicit drugs (§ 48900). Education Code section 35160 provides: “On and after January 1, 1976, the governing board of any school district may initiate and carry on any program, activity, or may otherwise act in any manner which is not in conflict with or inconsistent with, or preempted by any law and which is not in conflict with the purposes for which the school districts are established.” That drug abuse by certain student athletes could result in injury to themselves or to others is foreseeable. Many drugs impair mental and/or physical faculties causing a loss in judgment, concentration, physical sensation, and/or coordination. A baseball pitcher with impaired vision or coordination is a clear hazard to the safety of the batters. It is not hard to see, and thus foresee, the increase of the risks of injury attendant in sports such as football, gymnastics, diving, soccer, and basketball, resulting from some of the student participants using certain drugs. Since a school district has a duty to exercise care in the prevention of foreseeable injury in supervising the school related activity of its pupils and since use of drugs by athletes could present risk of harm, the school district would have the authority to carry on the drug surveillance program if the program was ‘not in conflict with or inconsistent with. . . any law. . . .” Does such a program conflict with any law? California citizens are guaranteed a right of privacy by section 1 of article I of the California Constitution. The United States Supreme Court has held that in matters closely connected with a person’s bodily functions and physical health such as procreation there exists a fundamental right of privacy guaranteed by the federal Constitution. (Roe v. Wade (1973) 410 U.S. 113, 153.) Additionally, the Fourth Amendment of the federal Constitution and section 19 of article I of the state Constitution each independently guarantee persons the right to be free from unreasonable searches and seizures. (Cal. Const., art. I, § 24; see also People v. Brisendine (1975) 13 Cal. 3d 528, 548–552.) 4 79-408 In Cupp v. Murphy (1973) 412 U.S. 291, at p. 295, the U.S. Supreme Court indicated that the test for determining whether the obtaining of samples of matter intimately connected with the body for analysis is a “search” is whether it goes “beyond mere ‘physical characteristics . . . constantly exposed to the public.’” Courts have found the following to be “searches” within the constitutional meaning of the term: the drawing and analysis of blood (Schmerber v. California (1966) 384 U.S. 757; People v. Hawkins (1972) 6 Cal. 3d 757); prostate massage to obtain and analyze semen sample (People v. Scott (1978) 21 Cal. 3d 284, 293); the use of emetic to retrieve stomach contents (People v. Bracamonte (1975) 15 Cal. 3d 394); the scraping of fingernails for analysis (Cupp. v. Murphy, supra). While we have found no case directly in point, we assume, for purposes of this opinion, that obtaining a urine sample under sufficient surveillance to assure against contamination is a sufficient intrusion to constitute a “search” of the person. (Cf. Quesada v. Orr (1971) 14 Cal. App. 3d 866, 870.) However, an intrusion which would otherwise constitute a constitutionally unreasonable search may be lawful if the subject of the intrusion voluntarily and intelligently consents to it. (People v. James (1977) 19 Cal. 3d 99, 106; People v. Michael (1955) 45 Cal. 2d 751, 753; see also People v. Bracamonte, supra, 15 Cal. 3d at p. 401.) In the drug surveillance program described by the requestor, written consent to the urine tests is obtained from the student or from the student’s parents or guardian, if the student is a minor. In In re Scott K. (1979) 24 Cal. 3d 395, the California Supreme Court held that a father could not lawfully consent to a police search of his 17–year-old son’s tool box. In order to ensure the sufficiency of the consent, it would be necessary for the school to obtain the consent of the minor student (see In re Robert H. (1978) 78 Cal. App. 3d 894, 899) and his or her parents or guardian. For the purposes of this analysis, it is assumed that the appropriate consent has been, or will be obtained. While the consent of the subject student may justify an otherwise unconstitutional search, there still remains the issue of whether the school district may lawfully exact such consent as a condition to athletic participation. The receipt of a public benefit under some circumstances may be conditioned upon the waiver of a constitutional right. The United States Supreme Court held in Wyman v. James (1971) 400 U.S. 309, 323–324, that a state could condition continued receipt of Aid to Families with Dependent Children upon the consent of the recipient to have a visit by a social worker even though such a visit was in effect a “search.” The court found that the condition was not unreasonable given the public’s interest in seeing that the funds were 5 79-408 being spent appropriately and that the purpose of the visit was not to investigate criminal activity. However, the state is not completely free to exact a waiver of a constitutional right as a condition of a public benefit. In holding a mass raid on random Welfare recipients’ homes to be illegal, the State Supreme Court set forth the following standard in Parrish v. Civil Service Commission (1967) 66 Cal. 2d 260, 271: “When, as in the present case, the conditions annexed to the enjoyment of a publicly conferred benefit require a waiver of rights secured by the Constitution, however well-informed and voluntary that waiver, the governmental entity seeking to impose those conditions must establish: (1) that the conditions reasonably relate to the purposes sought by the legislation which confers the benefit; (2) that the value accruing to the public from imposition of those conditions manifestly outweighs any resulting impairment of constitutional rights; and (3) that there are available no alternative means less subversive of constitutional right, narrowly drawn so as to correlate more closely with the purposes contemplated by conferring the benefit.” The drug surveillance program in question is lawful if it meets the three prongs of the test set forth in Parrish. The first prong of the test requires that the conditions of the drug surveillance program reasonably relate to the purposes sought to be achieved by the high school athletic program. The school district has an obligation to use care to prevent physical harm to students who are participating in the athletic program. The purposes of the athletic program would thus include the goal of safe participation in athletic activity. If the district has substantial evidence which supports a determination that drug abuse by student athletes is occurring and that such abuse does create a hazard to their safety while they are participating in the athletic program, the prevention of drug abuse would be reasonably related to the purposes of the athletic program. However, the drug abuse program itself, in order to be reasonably related to such purposes, would have to employ a method of testing which was directed toward exposure of the particular types of drugs which constitute the hazard. Under these circumstances the first prong of the Parrish test would be satisfied. The second prong of the Parrish test requires a balancing of the value of the drug surveillance program against any resulting impairment of constitutional rights. The program conditions participation in after-school athletics upon the waiver of the student’s right to refuse a urine test. Consideration must therefore be given to the nature of student’s interest in participating in the athletic program as well as to the extent of his or her constitutional right against the bodily intrusion which the urine test entails. 6 79-408 Education has been declared to be a “fundamental interest” by our State Supreme Court. (Serrano v. Priest (1971) 5 Cal. 3d 584, 608–609, cert. den. 432 U.S. 907.) However, the right to participate in after-school athletic programs has been held by federal courts not to be a civil right protected by the Due Process Clause of the United States Constitution. (Albach v. Odle (10th Cir. 1976), 531 F.2d 963; Hamilton v. Tennessee Secondary School Athletic Division (6th Cir. 1976) 552 F.2d 681; Mitchell v. Louisiana High School Athletic Association (5th Cir. 1970) 430 F.2d 1155.) A student’s interest in participation in non-credit athletic activity cannot be deemed as fundamental as his interest in obtaining a basic education. On the same side of the scale, along with the student’s interest in participating in the athletic program, must be placed his or her right to be free from searches by school officials. Previous cases involving searches of high school students or their property have analyzed the issue in terms of the rights of minors to be free from unreasonable searches. (See In re Christopher W. (1973) 29 Cal. App. 3d 777, 780–782; In re Fred C. (1972) 26 Cal. App. 3d 320, 324; In re Thomas G. (1970) 11 Cal. App. 3d 1193, 1198–1199; In re Donaldson (1969) 269 Cal. App. 2d 509, 511–513; Bellnier v. Lund (N.D. N.Y. 1977) 438 F. Supp. 47, 52–53 (and cases cited therein); Annotation, 49 ALR 3d 978.) Not all high school students are minors. Students 18 years of age or older are legally adults. (Civ. Code, § 25.) However, there appears to be a general rule which has emerged from those cases, that while high school students have a constitutional right to be free from unreasonable searches by school officials, a determination of the reasonableness of such searches must take into account the obligation school officials have to protect the students entrusted to them. Thus, it has been held that school officials may lawfully search a student where the purpose of the search is within the school’s duties, and there is cause commensurate with the cause which would justify a police officer to investigate criminal conduct. (In re Christopher W., supra; In re Fred C., supra.)1 In view of the school’s obligation of due care to prevent injury to all its students, we do not perceive the adult/minor distinction between students to be of significance in analyzing their right to be free from unreasonable searches. Both adults and minors have a similar right. (In re Scott K., supra.) ‘Constitutional rights do not mature and come into being magically only when one attains the state defined age of majority.” (Planned Parenthood of Missouri v. Danforth (1976) 428 U.S. 52, 74–75.) Since the courts, faced with the issue, have acknowledged that constitutional rights of students against unreasonable searches must be tempered by consideration of the 1 The Supreme Court in In re Scott K., supra, p. 402 fn. 6 cited In re Christopher W. and In re Fred C., as well as In re Donaldson, supra, with apparent approval. 7 79-408 obligation of school officials to care for students entrusted to them, we believe on balance the value of a safe athletic program manifestly outweighs any impairment of the students’ constitutional rights which may be caused by the drug surveillance program. The third prong of the Parrish test, that no less onerous alternative be available, is no less important than the other two. In Myers v. Accata etc. School District (1969) 269 Cal. App. 2d 549, 558, the court held that a school’s grooming requirement prohibiting “extremes” in hair styles was vague and overly broad and, thus, constitutionally invalid, since a more specific rule could constitute a less onerous restriction. In the case of the drug surveillance program it would be necessary for the school district to have determined that no less intrusive method of combating the drug abuse would be substantially effective in reducing the risk of harm. For example, drug counseling and education programs must be shown to be ineffective. There must be a determination based on reliable information that there is no feasible way of identifying the athletes suspected of being under the influence of drugs absent such testing. The program should be limited to those sports where there is a substantial risk of harm resulting from drug abuse by the players. The program should continue only as long as it appears reasonably necessary. These are some examples of considerations which should be included in any determination of whether the drug surveillance program is the least onerous, alternative method of reducing the risk of harm resulting from students participating in athletics under the influence of drugs. Thus, we conclude that the school district may lawfully administer the drug surveillance program if the program meets the requirements of the Parrish test by satisfying the conditions we have just discussed. In regard to the next question, we have concluded that the drug surveillance program is not invalid because it discriminates against student athletes. Both the state and federal Constitutions guarantee each person equal protection of the laws. (U.S. Const., 14th Amend; Cal. Const., art. I, § 7.) Traditionally, the constitutional right to equal protection of the laws requires that state action in creating classifications bears some rational relationship to a legitimate governmental purpose. (Hardy v. Stumpf (1978) 21 Cal. 3d 1, 7.) “However, when state action creates a suspect classification or abridges some fundamental right, such action becomes subject to strict judicial scrutiny and the state must show a compelling state interest in justification.” (Hardy v. Stumpf, supra; Hawkins v. Superior Court (1978) 22 Cal. 3d 584, 592.) Suspect classifications include those based on sex, race or national origin, alienage, and poverty, especially when it is related to rights of criminal defendants. (Sail’er Inn, Inc. v. Kirby (1971) 5 Cal. 3d 1, 18 (and cases cited therein).) Student athletes do not constitute 8 79-408 such a suspect class. Unlike sex, race and lineage, it is not “an immutable trait, a status into which the class members are locked by accident of birth.” (Id.) Nor does it have a characteristic which underlies suspect classifications: “the stigma of inferiority and second class citizenship.” (Id. at p. 19.) Particular physical ability does not place a person into a suspect class. (See Id. at p. 18.) Furthermore, the right to participate in after-school athletics cannot be deemed a “fundamental interest.” (See Albach v. Odle, supra, 531 F.2d 983.) Since the drug surveillance program involves neither a suspect classification nor a fundamental interest, the question remaining is whether the program which singles out only athletic participants for testing bears a rational relationship to a legitimate governmental purpose. Clearly it does. When danger is found to exist in a sports activity, such danger provides a rational basis for a classification which singles Out the athletes participating in that activity for special treatment designed to reduce that danger. Thus the constitutional requirements of equal protection are satisfied. The third question is whether such a drug surveillance program could be extended to other after-school activities for which credit is offered and in which the risk of physical injury is minimal. Of course any such drug surveillance program for other school activities would have to meet the three pronged test of the Parrish case. The basis for our conclusion that such a program for school athletic programs could meet the requirements of the Parrish test is because of the enhanced danger of physical injury the use of drugs would bring to those activities. The only description of the other activities referred to in the third question is that they are after school, credit is offered, and the risk of physical injury is minimal. Since the risk of physical injury is minimal in the other activities referred to, the basic justification for applying the drug surveillance program to athletic activities is missing. The other conditions specified, that the other activities occur after school and credit is offered, would not provide the justification required by the Parrish case to require consent to a drug testing program as a condition for participation in the other activities. We cannot provide an opinion on the validity of a drug testing program in other school activities in the abstract. Without more facts stating the nature of the other activities and the reasons for applying a drug testing program to it, we have no basis for evaluating its validity. Accordingly, we decline to provide a specific answer to the third question. *****